Justice Department defends actions in James Rosen case

5/24/13 5:34 PM EDT

The Justice Department on Friday defended the decision to seek a search warrant for Fox News reporter James Rosen's email and confirmed that Attorney General Eric Holder was consulted about the move.

Court documents first published Sunday by the Washington Post showed that a Gmail account Rosen used was searched in connection with an investigation that resulted in the indictment of State Department contractor Stephen Kim on charges of leaking classified information and lying to investigators.

"The Department takes seriously the First Amendment right to freedom of the press. In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General," said a department spokesman who asked not to be named. "After extensive deliberations, and after following all applicable laws, regulations and policies, the Department sought an appropriately tailored search warrant under the Privacy Protection Act. And a federal magistrate judge made an independent finding that probable cause existed to approve the search warrant.”

“Attorney General Holder understands the concerns that have been raised by the media and has initiated a reevaluation of existing Department policies and procedures. This review will include extensive engagement with representatives of the media. The Department must strike the appropriate balance between its obligation to enforce the laws preventing leaks of classified information and First Amendment rights, and, through a new media shield law and appropriate updates to the Department’s internal guidelines, we are committed to achieving that balance," the spokesman added.

POLITICO reported Monday night that Holder was not recused from the Rosen matter, unlike a similar probe that delved into Associated Press call records. Under Justice Department regulations, subpoenas for journalists' testimony and searches of their records or "telephone toll records" require the approval of the attorney general. It's not entirely clear whether as a literal matter those regulations applied in the Rosen matter, since the search was technically of Rosen's email provider, but department officials have said the issue was nevertheless reviewed at the highest levels. NBC first reported Thursday that Holder specifically approved the Rosen search.

On Thursday, the U.S. District Court in Washington released more details on litigation surrounding the Rosen search warrant. The documents include an opinion by Federal Magistrate John Facciola insisting that Rosen was entitled, by law, to be notified that his email was searched. The opinion (posted here), was appealed by the Justice Department (appeal posted here), as I noted on Monday.

Chief Judge Royce Lamberth ruled for the government on the appeal, disagreeing with Facciola and another magistrate who actually signed the search warrant.

Fox has reported that Rosen was never notified of the search of his email.